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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33471
Experience:  Retired (mostly)
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I am going to a wage hearing tomorrow at the DLSE in California.

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I am going to a wage hearing tomorrow at the DLSE in California. I live and worked as a sales rep here in California but was employeed by a company out of Texas. I do understand that our labor codes here are much different than the ones in Texas and have gathered all the State and Federal Labor codes I can to help my case. I have 4 issues that I am addressing: Personal Files and Records, Payroll Deductions, Vacation/PTO and Wages. I worked for this company from 8/1/2010 to 12/2/2011 as an at "will employee" with a benifit package, salary, commissions and a bonus plan. On 12/3/2011 to 4/30/2012 I was switched to a commision only independant contractor WITHOUT a revised contract. I have several questions for you. (1) I have 80 of unused PTO I wish to collect over a 16 month period. I am including my salary, commisions and bonuses to determine my weekly and hourly wage. How would I calculate that? Would I use 16 months or 68 weeks to get my daily and hourly wage? (2) In my employee hand book it states that if I don't use my PTO, I lose it ( Texas Law). Does California law automatically overide the employment contract? As I read through the labor laws I see a few exclusions like "unless provide by a wage agreement" or " collective bargaining". Wouldn't my employment contract be a "wage agreement"? (3) Since I was never given a revised contract when I switched to a 10-99 contractor, would I still be considered an employee? If there are any labor codes that would apply to these questions I would appreciate if you included them. Thank You.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
I have several questions for you. (1) I have 80 of unused PTO I wish to collect over a 16 month period. I am including my salary, commisions and bonuses to determine my weekly and hourly wage. How would I calculate that?

A: The following is extracted from the DLSE website:

A commission salesperson working for an appliance dealer is discharged on May 10, 2002. She is not paid her earned commission wages due until May 25, 2002, the regular payday. She regularly worked 40 hours per week, five days per week. For the last three full months of her employment, on average she earned $3,000.00 per month. As of the date of her discharge, May 10, 2002, all commissions since the end of the previous pay period had been earned and were calculable by the employer on that date. At the time of her discharge, the employee did not know the amount of commissions she had earned since her last pay period.

 

Daily Rate of Pay Calculation

$3,000.00/month x 12 months/year = $36,000.00/year

$36,000.00/year ÷ 52 weeks/year = $692.31/week

$692.31/week ÷ 5 days = $138.46/day (daily rate of pay)


See generally, DLSE Enforcement Manual Section 49.

Would I use 16 months or 68 weeks to get my daily and hourly wage?

A: You would use the last applicable pay period. If you are paid commissions monthly, then that's the period that would apply.

(2) In my employee hand book it states that if I don't use my PTO, I lose it ( Texas Law). Does California law automatically overide the employment contract?

A: If you were employed to work in California, then the employer must comply with California law. See this guide for more info.

As I read through the labor laws I see a few exclusions like "unless provide by a wage agreement" or " collective bargaining". Wouldn't my employment contract be a "wage agreement"?

A: You'll have to cite the legal authority (code section) for your statement, otherwise, I'm guessing -- and I prefer not to guess.

(3) Since I was never given a revised contract when I switched to a 10-99 contractor, would I still be considered an employee?

A: A written contract is irrelevant to the determination of your employment status. Many employers attempt to circumvent the employment laws by converting employees to 1099-Misc contractor status. California is extraordinarily hostile to the independent contractor relationship. The Labor Code makes a person other than an employee or licensed attorney personally liable for incorrect advice concerning employment status. Labor Code 2753.

To determine if you are actually an employee or an independent contractor, see this link.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33471
Experience: Retired (mostly)
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